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JUSTICE MIMS PROVIDES “MUSINGS OF A ROOKIE JUSTICE”

[Posted April 2, 2011] Yesterday afternoon, Supreme Court Justice Bill Mims addressed the VTLA’s annual convention to provide what he termed, “Reflections from the End of the Bench,” on an occasion marking the first anniversary of his being sworn in as Virginia’s 100th justice. He spent the first half of his presentation describing his view of the court’s primary roles – error correction, statutory interpretation, and law development. The rest of his speech was devoted to some helpful and sensible practice tips for appellate presentations. Here’s a summary of those suggestions:

• On preservation of issues for appeal, “precision is essential.” Echoing the sentiments of many other justices, he explained that there have been numerous cases where he badly wanted to reach the merits of an issue, only to be thwarted by an inadequate objection or proffer. He noted that the court is quite strict about preservation, and recommended that trial lawyers state an objection clearly, repeat that objection in endorsing orders, and move to reconsider.

• Justice Mims sees no disadvantage of filing a petition for rehearing after the denial of a petition for appeal, “where you truly believe you have an appealable issue.” This pleading gets your petition before all seven justices of the court, any one of whom may grant you a writ.

• With regard to briefwriting, he notes that first impressions are lasting impressions; you should state your best appellate points “early, succinctly, and forcefully.” For emphasis, he sees nothing wrong with using boldface type, italics, or underscoring. “But no smileys or frownies,” he added, to the expected chuckles.

• Oral argument “won’t rescue your case if you don’t make it in your brief.” He observed that a poor oral argument can indeed sabotage a winning case. While the brief is of critical importance, “minds can be changed” during oral argument.

• Lawyers should learn to recognize the difference between friendly and unfriendly questions. Don’t assume that every question from a jurist is designed to trick you or expose a weakness in your argument; sometimes it’s an opportunity for you to make a point more forcefully.

• Finally, he recommends to oral advocates, “impose your own word limit.” Unlike the Supreme Court of the United States, which allows each side 30 minutes per case, the Virginia justices permit each side just 15 minutes. “Don’t try to pack 30 minutes of argument into 15 minutes.”

Experienced appellate attorneys know many of these sensible ideas already, and I’ve even urged a few of them over the years on these pages. But for persuasive force, there’s something I just can’t ever match when a member of the court explains to an audience, “This is what we look for. This is what works in our courtroom, and what doesn’t.” I urge these excellent ideas upon my readers as invaluable insight into how to conduct an appeal, at all phases of the process. Attaboy, your honor; attaboy.